Opinion 95-81

June 8, 1995

Digest:         A newly appointed part-time town justice may serve as a public defender in a county other than the county where the judge presides, but is prohibited from presiding over any matters handled by other attorneys from the public defender's office in which the justice serves.

Rule:            22 NYCRR 100.5(f); 100.5(h)

Opinion:

         A newly appointed town justice asks whether it is permissible to continue employment as a part-time public defender in another county. The judge also inquires whether or not a conflict will arise when a part-time public defender from that other county appears before the judge. Assuming arguendo that such a conflict does arise, may it be waived?

         Section 100.5(h) of the Rules of the Chief Administrator provides that:

A part-time judge may accept private employment or public employment in a Federal, State or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties.

         Section 100.5(f) of the Rules of the Chief Administrator provides, in pertinent part:

A judge who is permitted to practice law shall, nevertheless, not practice law in the court in which he or she is a judge, whether elected or appointed, nor shall a judge practice law in any other court in the county in which his or her court is located which is presided over by a judge who is permitted to practice law ... No judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge ....

         As stated in Opinions 90-143, Vol. VI, and 91-144, Vol. VIII, a part-time judge, who also is an attorney, may serve as a public defender in the courts of another county (i.e., a county other than the county in which the judge presides). However, the judge may not sit as a judge in any matter in which an attorney from the public defender's office by which the judge is employed, appears. Such a conflict may not be waived.